IV.
FREEDOM OF ASSOCIATION UNDER U.S. LABOR LAW

The U.S. Legal
Framework for Workers' Freedom of Association

Constitutional Underpinnings of U.S.
Labor Law

The U.S. Constitution makes no specific
mention of the right to organize, to bargain collectively, or to strike.
However, theFirst Amendment of the U.S. Constitution (1789) protects
freedom of assembly, free speech, and the right to petition the government
for redress of grievances. Laws or regulations that violate these rights
may be struck down as unconstitutional by the Supreme Court of the United
States. The 14th Amendment (1866) and its mandate for "equal protection
of the law" applies the Bill of Rights to the individual states. Moreover,
each state has its own constitution and bill of rights providing equivalent
guarantees. The U.S. Supreme Court has specifically applied the First Amendment
to protect workers' organizing, political and legislative action, peaceful
picketing and other lawful activity.86

The "commerce clause" in Article I, Section
8 of the United States Constitution empowers Congress to "regulate commerce
among the several states." Citing "burdens and obstructions" on interstate
commerce when employers refuse to deal with workers' organization, the
Supreme Court upheld the constitutionality of the National Labor Relations
Act based on the commerce clause.87 The same
constitutional clause is the basis of federal jurisdiction over most U.S.
labor law regarding workers' freedom of association, since most commerce
is interstate.

Statutory Sources

Landmark federal legislation in the twentieth
century set the framework for protection of workers' rights to organize,
to bargain and to strike (note that U.S. laws often carry the name of their
congressional sponsors and are often referred to by those names):

The Railway Labor Act of 1926 (RLA)
established the right of workers in the railroad industry to organize and
bargain collectively through representatives of their own choosing. That
law was limited to railway labor because of the central importance of rail
transportation in the national economy. In 1964 the RLA was extended to
workers and employers in the air transportation sector. Today, nearly one
million U.S. rail and air transport workers are covered by the RLA.

The Norris-LaGuardia Act of 1932
outlawed contracts between workers and employers in which the worker promised
never to join a union. Such "yellow-dog" contracts, as they were called,
were a common demand made upon workers by employers to prevent exercise
of rights to organize and bargain collectively. The Norris-LaGuardia Act
also sharply constricted the ability of employers to obtain labor injunctions
as a strike-breaking measure. Finally, it relieved workers' leaders of
personal criminal and civil liability for the acts of individual workers
unless the leaders participated in or ratified the acts.

The National Labor Relations Act (NLRA
or Wagner Act) of 1935 extended to most private sector employees "the
right to self-organization, to form, join or assist labor organizations,
to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection." The NLRA created a new concept
in American law: the unfair labor practice. The law defined five unfair
labor practices, including discrimination against workers for engaging
in mutual aid or protection and refusal to bargain with workers' freely
chosen representatives. It made such practices unlawful.

The Labor Management Relations Act (LMRA
or Taft-Hartley Act) of 1947 amended the NLRA, in a number of respects
sought by U.S. employers who argued that the Wagner Act was too pro-labor.
The LMRA created a new set of unfair labor practices under which unions
could be held liable. It established an "employer free speech" clause permitting
managers to openly and aggressively campaign against worker self-organization.
The Taft-Hartley amendments allowed individual states to enact "right to
work" laws barring voluntary agreements between workers and employers to
require payment of union dues by all represented employees. The law prohibited
"secondary boycotts," where workers involved in a "primary" labor dispute
seek solidarity action by workers at a supplier or customer of their own
employer, and instructed the NLRB to seek immediate injunctions against
such action.

The Labor Management Reporting and Disclosure
Act (LMRDA or Landrum-Griffin Act) of 1959 established a "bill of rights"
for individual trade union members in internal union affairs, including
a right to democratic elections of leaders. The LMRDA set forth detailed
financial reporting and disclosure requirements for unions. It also extended
prohibitions on secondary action by workers.

Today, the Wagner Act, the Taft-Hartley
Act and the Landrum-Griffin Act are the most important federal labor laws
governing private sector labor-management relations. While they are separate
statutes, these laws often overlap and refer to one another in a complex
legislative structure. For convenience, this

bundle of statutes is often called "the
NLRA," a practice followed in this report. Other laws such asthe Fair Labor
Standards Act, the Occupational Safety and Health Act, the Equal Pay Act,
the Agricultural Workers Protection Act and so on cover minimum wage, hours
of work, child labor, workplace safety, nondiscrimination in employment,
migrant labor conditions and other matters separate from labor-management
relations.

Labor Law Jurisdiction

United States labor laws on the right to
organize, to bargain collectively and to strike fall almost entirely within
federal jurisdiction. Under the commerce clause of the U.S. constitution,
federal law prevails over state laws on matters of interstate commerce-an
extremely broad jurisdiction in the complex modern economy.

U.S. labor laws covering freedom of association
mainly are enforced by federal government authorities and federal courts.
Occasional state efforts to pass legislation on labor relations matters
are usually struck down by the courts as pre-empted by federal law. The
states are allowed a limited legislative or law enforcement role where
predominantly local interests are at stake.

Basic Labor Law Policy

Section 1 and Section 7 of the 1935 Wagner
Act set forth the central precepts of U.S. labor law.

Section 1 states: "It is hereby declared
to be the policy of the United States to eliminate the causes of certain
substantial obstructions to the free flow of commerce and to mitigate and
eliminate these obstructions when they occur by encouraging the practice
and procedure of collective bargaining and by protecting the exercise by
workers of full freedom of association, self-organization, and designation
of representatives of their own choosing, for the purpose of negotiating
the terms and conditions of their employment or other mutual aid or protection."

Under Section 7 of the NLRA, "Employees
shall have the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their
own choosing, and to engage in other mutual aid or protection." The Taft-Hartley
Act of 1947 added to Section 7 the terms "and shall also have the right
to refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section 8(a)(3)."

An important feature of U.S. labor law
is that it protects "concerted activity" and "mutual aid or protection."
That is, employees do not have to be involved in trade union activity to
be protected by the law. Indeed, they may have no intentionat all to unionize,
but as long as they act in concert their activity is protected under the
law.88

Exclusions from coverage of the NLRA

Legal protection for concerted activity,
including the right to organize, to bargain collectively and to strike,
are afforded to "employees" as defined in the law. The definition specifically
excludes agricultural workers, domestic workers, managers, supervisors,
confidential employees and independent contractors from coverage. The exclusion
means that employers can discharge these workers with impunity for attempting
to form and join a union. Victimized workers have no legal recourse (see
the discussion in Chapter V., Defenseless Workers: Exclusions in U.S.
Labor Law. below).

Unfair labor practices

The central instrument in U.S. law for
protecting workers' rights to organize, to bargain collectively, and to
strike is the definition of five unfair labor practices in Section 8(a)
of the National Labor Relations Act. An unfair labor practice violates
the NLRA and is subject to the remedies provided by the law.

*Section 8(a)(1) of the NLRA makes it an
unfair labor practice to "interfere with or coerce" employees engaged in
concerted activity.

*Section 8(a)(2) of the NLRA makes employer
"domination" of a labor organization an unfair labor practice.

*Section 8(a)(3) protects the right to
organize by defining an unfair labor practice of discrimination against
workers for protected concerted activities, including union activity.

*Section 8(a)(4) makes it unlawful to retaliate
against a worker for filing unfair labor practice charges or giving testimony
in NLRB proceedings.

*Section 8(a)(5) defines as an unfair labor
practice an employer's "refusal to bargain" with a certified collective
bargaining representative of employees.

U.S. labor law is remedial, not punitive.
It does not provide for civil or criminal sanctions or penalties in unfair
labor practice cases. An employer that commits an unfair labor practice
must "cease and desist" from unlawful conduct and post a notice in the
workplace promising not to repeat the conduct. Steps must also be taken
to restore the status quo ante, such as reinstatement and back pay
forworkers discharged for organizing, or a return to the bargaining table
in refusal-to-bargain cases. In back pay awards for workers, the amount
of any interim earnings obtained by the worker is deducted from the back
pay paid by the employer.

How Workers
Form and Join Trade Unions in the United States

Workers usually take the first steps to
exercise freedom of association in the workplace with informal meetings
among themselves. In small groups at lunch or during breaks, or at a nearby
restaurant or coworker's home, they discuss wages, benefits, safety conditions,
treatment by management and other problems at their workplace. They might
react to a policy move by management-a change in benefit plans, for example,
or a new incentive pay system. They often compare their employment conditions
to other work experience they have had, or to what they know about unionized
workplaces in the same community.

Enter a Union

Sometimes workers' discussions remain gripe
sessions, and nothing more happens. But sometimes workers call a local
union office for help.89 A union staff organizer-an
employee of a union whose job is to help workers form new unions-normally
arranges a series of meetings with workers. Like the workers' own initial
meetings, these are usually in small groups starting at a worker's home
or at a nearby restaurant.

As the circle of interested workers grows
wider, meetings start to be held in larger union halls or rented meeting
space. Workers tell organizers about conditions in the workplace. Organizers
tell workers how the union operates and what the union has achieved in
other locations. If the organizing effort takes root, the most active workers
form an organizing committee to advocate openly for the union inside the
workplace.

The union organizer distributes cards for
workers to sign indicating their desire to join the union and have the
union represent them in collective bargaining with the employer. These
authorization cards can be signed at any time, beginning with the first
workers involved in the organizing, then by more workers as the organizing
effort proceeds. Alternatively, some unions prefer to have employees active
in the organizing committee distribute cards and obtain signatures from
coworkers in a shorter period after the committee takes shape and the organizing
effort is out in the open. Under legal rules, workers usually can hand
out cards and other literature in non-work areas on non-work time, typically
in a break or lunch room.

Moving to an Election

Once cards are signed by at least 30 percent
of the workers in the "bargaining unit"90 they
seek to form, workers can petition the nearest regional office of the NLRB
to hold a secret-ballot election. If a majority votes for representation,
the NLRB will certify the results, creating a legal obligation for the
employer to bargain with the workers' chosen representative. Normally,
workers wait until a supermajority-two-thirds is a common rule of thumb-have
signed cards before they petition for an election. Union organizers have
learned from experience that the percentage of favorable votes in an election
usually falls from the percentage that signed cards. They want to enter
the election campaign phase with a margin of security, hoping to retain
a majority when the election is held.91

The Election Campaign

Most NLRB elections take place four to
eight weeks after workers file their petition. About 20 percent of elections
are held more than eight weeks later, often when the employer contests
the makeup of the bargaining unit sought by theunion-for example, arguing
that workers included in the union's petition are supervisors who should
be excluded.

The NLRB calls the weeks between a petition
and an election the "critical period" because an employer cannot claim
no knowledge of a union organizing effort during this time. Such lack of
knowledge is often used as a defense against an unfair labor practice charge
when management dismisses a union supporter before a petition is filed.92

The pre-election period is usually marked
by vigorous campaigning on all sides. Union supporters hold rallies, wear
buttons and T-shirts with a pro-union message, and distribute pro-union
flyers to coworkers. Management often engages consultants who specialize
in designing and implementing forceful campaigns against workers' efforts
to form and join a union. They write scripts for employers' letters to
workers' homes, flyers distributed in the workplace, and speeches to workers
in "captive-audience meetings" that are a staple of employers' campaigns
against workers' attempts to form and join a union.93
Such meetings are called "captive" because attendance is mandatory for
workers, and workers can be prohibited from asking any questions or making
any comments under pain of discipline, including discharge. In addition,
consultants typically train supervisors to present management's anti-union
views in smaller individual and group meetings with the workers under each
supervisor.

It is common for some workers within the
group being organized to oppose forming and joining a union. They often
form a "Vote No" committee and join managers and supervisors in campaigning
against the union. It is illegal for employers to instigate or assist such
a committee. Intensive discussions and arguments are common in the workplace
during the pre-election period. After several weeks, the final days before
the election usually reach a high pitch of tension, often with accusations
of lies and dirty tricks.

NLRB agents conduct a secret-ballot election,
usually in the workplace at times and places allowing all workers to vote
during work time. When balloting ends, the NLRB agents count the votes
immediately in the presence of company and union observers.

The NLRB conducts more than 3,000 elections
each year at companies where workers seek to form and join a trade union
for the first time. A few hundred other elections involve decertifications,
where workers seek to get rid of a union; elections between competing unions;
and unit "clarification" elections. Nearly two-thirds of elections are
held in workplaces with fewer than fifty employees.

For many years now, workers have chosen
union representation in approximately half of all NLRB elections. Aggregate
vote totals in all elections also divide in roughly equal proportion.94

After an Election

Either party may file objections to the
election claiming unfair tactics by the other side. The NLRB will investigate
these allegations and hold a hearing if necessary. This "objections" case
hearing is usually less formal than an "unfair labor practice" case hearing,
which is more like a full-scale trial before a judge. Based on the results
of an objections case hearing, the NLRB can certify the results of the
election or order a new election.

Moving Toward Bargaining

If the NLRB finds that the election was
fairly conducted and certifies that a majority of workers chose collective
bargaining, the employer is obligated under the law to bargain in good
faith with the workers' chosen representative. However, the employer can
legally defy the NLRB's order by engaging in what is called a "technical
refusal to bargain." Using this tactic, the employer refuses the union's
bargaining request and forces it to file a new unfair labor practice charge
with the NLRB. The NLRB's General Counsel must then initiate an unfair
labor practice case based on the employer's refusal to bargain, and seek
support for the NLRB ruling from a federal appeals court. Years of litigation
can follow.

Collective Bargaining

The NLRA makes refusal to bargain in good
faith an unfair labor practice, and the good-faith bargaining obligation
applies to both parties.95 In 1998, workers
charged employers with refusal to bargain in good faith in 7,187 cases,
while employers charged unions with such refusals in 172 cases.96

The law requires meeting at reasonable
intervals and exchanging proposals on "mandatory subjects of bargaining"-issues
of wages, hours and working conditionsaffecting represented employees.
The "good faith" bargaining obligation has been defined as "an obligation
. . . to participate actively in the deliberations so as to indicate a
present intention to find a basis for agreement

. . . a sincere desire to reach an agreement."97
To bargain in good faith, "a sincere

But there are no objective measures of
intentions or sincerity. Good-faith bargaining does not require either
party to agree to a proposal from the other.99
Advised by skilled counsel, some employers go through the motions of good-faith
bargaining to avoid a finding by the NLRB or the courts of bad-faith bargaining
or "surface bargaining," defined as the "desire not to reach an agreement."100
A typical maneuver is to make a "killer proposal" that the employer knows
the union could never agree to, while showing flexibility on other issues.
Even if found guilty of bad-faith bargaining, the only remedy the employer
faces is an order to return to the bargaining table, where the cycle can
simply repeat itself.101

"Impasse" in Bargaining and Unilateral
Implementation

Collective bargaining can end with an agreement.
It can also end with each party making final offers without coming to an
agreement. When such an "impasse" is reached, the employer is allowed to
"post conditions." That is, the employer can unilaterally implement its
final offer unless the parties agreed earlier to extend prior terms and
conditions indefinitely (an increasingly rare contract term). Workers must
then live with the imposed terms or strike to obtain their own proposal
or a compromise that might result from a strike.

The impasse doctrine is not contained in
the NLRA. It was elaborated by the courts, first by implication in a case
where the Supreme Court ruled that unilateral changes prior to impasse
are unlawful.102 The court said that "even after
an impasse is reached he [the employer] has no license to grant wages increases
greater than any he has ever offered the union at the bargaining table."103
This has been takento mean that the employer may implement his last offer
to the union upon impasse, and this is now the rule in U.S. labor law.104

Strikes and Lockouts

Whether or not impasse has been reached
in bargaining, workers can strike or employers can "lock out" workers in
a test of economic strength to achieve their bargaining goals, unless a
no-strike/no-lockout clause in a prior contract is still in effect. Workers
can withhold their labor and set up picket lines at the workplace, but
they cannot prevent the employer from continuing operations.

Employers have many options for continuing
operations during a strike. In many workplaces managers and supervisors
can maintain activity. As long as employers do not use threats to coerce
them or promises to entice them, they are legally permitted to try to persuade
workers not to join strikes or to "cross over" picket lines and return
to work, which trade unionists call "scabbing."

Employers may subcontract operations to
other employers during a strike. They can recover lost income from a mutual
aid fund among employers, just as workers depend on a union strike fund
for assistance. Even during a strike, employers and unions can agree, as
many do, to have striking workers maintain certain equipment or functions
to prevent safety hazards or to assure a rapid resumption of operations
when the strike ends. Absent such an agreement, an employer may use contractors
to this end.

Striker Replacements

Most important, employers may hire replacements
for striking workers. These can be temporary replacements who leave the
worksite when the strike ends. But management may also hire permanent replacements,
leaving workers who exercise the right to strike jobless, able to be recalled
to work only when a job is vacated by a replacement worker. Replacement
workers, too, are called "scabs" by workers loyal to the strike. After
one year, an NLRB election to decertify the union can be held, with strikers
not eligible to participate in the vote.105

How the National
Labor Relations Board Works

The National Labor Relations Act (NLRA)
is the main U.S. law meant to protect workers' rights to organize, to bargain
collectively, and to strike under U.S. law.106
The National Labor Relations Board (NLRB) is the main government agency
that enforces those rights. But these are not the only laws and agencies
that cover workers' freedom of association. The Railway Labor Act and the
National Mediation Board (NMB) play parallel roles for workers in the railroad
and airline industries. A Federal Labor Relations Act and Federal Labor
Relations Board cover federal government employees' organizing and bargaining
rights.

In states that allow public employees to
form unions and bargain collectively, various labor relations laws and
boards regulate organizing and collective bargaining by state, county and
municipal employees. States also have "little NLRBs" for private sector
workers in extremely small enterprises that fall short of the NLRB's jurisdictional
requirements. The NLRB requires that the employer have annual gross revenues
of $250,000 including $50,000 in interstate commerce to come under its
jurisdiction.

While millions of private sector workers
(agricultural workers, supervisors, managers and others) are excluded from
coverage by the NLRB, a substantial majority of private sector workers
in the United States do come under the board's jurisdiction.107
Its operations come up repeatedly in this study, making a "primer" on NLRB
procedures an important reference. Knowing how the NLRB works is especially
needed for understanding how, despite an enforcement staff committed to
the purposes of the law and a successful record conducting elections and
prosecuting unfair labor practice cases, legal entanglements in the board
and the courts often frustrate workers' freedom of association rights.108

The NLRB has three independent branches:
the five-member board in Washington, D.C.; a general counsel also based
at NLRB headquarters, and adivision of administrative law judges. A network
of thirty-three regional offices carries out NLRB tasks around the country.

Structure and Functions of the Board

The five-member NLRB is appointed by the
president to individual five-year terms, subject to Senate confirmation.
A board member's term is fixed regardless of any change in the presidency,
so members remain in office when administrations change. It usually takes
some time before a new president puts his or her "stamp" on the NLRB so
that it comes to be known, for example, as "the Eisenhower board," (1952-1960)
or the "Reagan board" (1980-1988) or the recent "Clinton board" (1992-2000).

By tradition, no more than three board
members can belong to the same political party. Appointments often give
rise to controversy, since nominees of necessity must be experienced labor
law scholars or practitioners and thus have a record of writing or advocacy
that can be identified as pro-labor or pro-management.109
Appointments often come in balanced "packages" with relatively moderate
candidates identified as having a labor background or a management background.
Such balanced appointments usually satisfy Republicans and Democrats in
Congress and the administration in the White House.

Labor and management partisans often attack
as biased an NLRB closely linked to an administration they are otherwise
unhappy with. Trade unions vilified the Reagan board of the 1980s, and
management forces have attacked the Clinton board of the 1990s.110
In general, though, while Democratic or Republican majority boards might
lean one way or another, the NLRB carries out its mandate within a centrist
range established by the law. Charges of bias are unwarranted. However,
this report demonstrates that the range is established between legal margins
that often frustrate workers' rights under international human rights standards.

The NLRB has two main functions. First,
it oversees the representation election process by which workers in a bargaining
unit choose whether to bargain collectively with their employer. The board
conducts a secret-ballot election and certifies whether a majority has
favored union representation. If so, the employer is obligated to bargain
in good faith with the workers' chosen representative. Upon filing of "objections
to the election" by a losing party, the board also decides whether election
campaign behavior has tainted election results. If so, the board orders
a re-run election.

Second, the board serves as an appeal panel
that reviews written decisions by administrative law judges in cases involving
unfair labor practices. The most common unfair labor practices are discriminatory
reprisals against workers attempting to form and join trade unions (usually
firings), and refusal to bargain in good faith with workers' chosen representatives.
Unfair labor practices are legally and procedurally distinct from the election
process and from "objections" to election conduct decided by the board
in administrative proceedings. Performing its appeal function in unfair
labor practice cases, the board is more like a court of appeals than an
administrative agency.

The General Counsel

The general counsel of the NLRB is independent
of the five-member board. The general counsel has an extremely powerful
role in the structure of the agency, because he or she has the sole authority
to issue a complaint in an unfair labor practice case. There is no appeal
to the NLRB or to the courts if the general counsel does not issue a complaint.

Acting through the directors and staff
in regional offices, the general counsel conducts investigations of unfair
labor practice "charges" filed by workers, unions or employers. Key steps
in the investigation include interviewing and taking statements from workers,
employers, and others involved in a case and evaluating the evidence gathered.
Employers are informed of any charges and have the opportunity to meet
privately with board investigators and to present written arguments contesting
a charge. Following the investigation a rigorous evaluation of the evidence
is conducted by a team of experienced NLRB attorneys acting on the general
counsel's behalf. Complex or novel issues can be referred to the general
counsel's office for advice.

The median time lapse to conclude an investigation
and evaluation of an unfair labor practice charge is nearly three months.111
If the general counsel finds "merit" in the charge that an unfair labor
practice occurred, a "complaint" is issuedspecifying the violations in
detail and setting a date for hearing before an administrative law judge.
If the hearing takes place (many cases are settled after the issuance of
a complaint and before hearing), the general counsel acts as prosecutor
at no cost to the party who filed the charge. The general counsel is representing
the public interest and advancing the public policy of the United States,
which outlaws actions defined in the NLRA as unfair labor practices.

Regional Offices and Regional Directors

Obviously, the five-person board or the
single general counsel does not conduct every election or prosecute every
unfair labor practice. The NLRB has thirty-three regional offices to handle
cases around the country, each with a staff of attorneys and agents headed
by a regional director. Depending on the nature of the case, the regional
director and staff handle "R" cases (representation elections) or "C" cases
(unfair labor practice charges).

In all proceedings, regional staff and
regional directors strive to achieve voluntary settlements of cases without
going to hearings. Parties can submit position papers to the regional staff
and informally argue their positions with the regional director. The general
counsel finds "merit" in 35-40 percent of the unfair labor practice charges
filed with the board.112 As in any litigation
system, most of these cases are settled. Of cases where complaints are
issued, about 15 percent reach the stage of a completed hearing before
an administrative law judge.

In some 90 percent of cases where the general
counsel found merit in the charge, relief is obtained-most often back pay
for a worker who suffered discriminatory reprisals. In 1998 nearly 24,000
workers received back pay from employers because of discrimination for
union activity. Of these, almost 18,000 received back pay under an informal
settlement of their unfair labor practice case, while some 6,000 received
back pay under an order by an administrative law judge, the NLRB, or a
federal court.113 Total back pay paid to victimized
workers in 1998 was nearly $90 million.114

While superficially these totals can appear
to indicate an enforcement system that is working, other problems discussed
in this report such as delays in reinstatement and the fact that very few
workers awarded reinstatement actually return to work have a chilling effect
on workers' exercise of the right to organize. Failure to swiftly remedy
violations by the most determined anti-union employerssignals to other
employers that they can get away with similar conduct. The dramatic rise
in the frequency of discrimination against workers who try to organize
(a four-fold increase since the 1960s) demonstrates that the labor law
system has a rapidly diminishing deterrent effect on workers' rights violations.

Administrative Law Judges

Administrative law judges are independent
of the board and of the general counsel. A corps of experienced labor law
experts, the approximately seventy-five NLRB judges preside over unfair
labor practice hearings in much the same way that civil and criminal court
judges preside over non-jury trials (there are no juries in NLRB proceedings).
The judges manage proceedings to give parties full opportunity to prosecute
and defend while avoiding repetition and unnecessary prolonging of a hearing.
Applying rules of evidence, they decide on the admissibility of evidence
and objections by counsel in the examination and cross-examination of witnesses.
They also evaluate the credibility of witnesses.

This last power is significant since most
unfair labor practice hearings involve conflicting accounts of what happened.
In the most common cases involving the firing of worker activists, workers
charge-and the general counsel supports the charge in a complaint-that
they were discharged because of organizing activity while the employer
claims that the worker was fired for another reason unrelated to such activity.
As a general principle, the NLRB or the courts do not overrule an administrative
law judge's "credibility" findings because the findings rest on witnesses'
demeanor at the hearing, something the reviewer of a written record cannot
see.

The median time lapse between the issuance
of a complaint and a hearing before an administrative law judge is six
months.115 Depending on the complexity of the
case the hearing can last several months. After a hearing ends, the judge
reviews the evidence, the transcript of witnesses' testimony, and written
briefs by the parties, and issues a written decision with findings of fact
and conclusions of law on whether unfair labor practices occurred. As noted
above, the findings of fact often depend on the judge's determinations
on witnesses' credibility, since much testimony involves disputes about
who said what or did what to whom. The median time between the close of
the hearing and the judge's decision is four to five months.116

Appeal to the NLRB

A party aggrieved by an administrative
law judge's decision can appeal it to the NLRB in Washington. The board
reviews the evidence, the transcript, and the judge's written decision
and opts to uphold it, reverse it, or modify it. The NLRB's own written
decision can adopt the judge's ruling without comment or offer the board's
separate reasoning based on its reading of the case record. The median
time for the NLRB's decision is ten months. In complex or controversial
cases the board often takes two or three years to issue its decision.117

Appeal to the Federal Courts

The NLRB's decision can be appealed to
a U.S. federal circuit court of appeals in one of twelve geographically
distinct parts of the country. Each circuit is composed of several states
except the District of Columbia Circuit, which handles many NLRB appeal
cases. Most appeals are decided by three-judge panels.

In the same way that the board reviewed
the administrative law judge's decision, the court panel reviews the board's
decision along with the hearing record and the judge's decision. While
there is a general policy of deference to the administrative expertise
of the NLRB, appeals courts sometimes make their own judgment on the merits
of a case. Some circuit courts are more deferential to the NLRB, while
others are more prone to discount the board's reasoning in a case. Subsequently,
if the board disagrees with the holding of a circuit court's decision,
it will apply that holding only in similar cases arising in the states
within that circuit and not in the rest of the country. As a result, there
are some conflicting applications of labor law in different parts of the
country despite a general policy of uniformity under federal law.

Only a small percentage of unfair labor
practice cases reach the stage of a trial and decision before an administrative
law judge or go farther, to appeal stages before the NLRB or federal courts.
But even these relatively few cases affect many workers. In all, administrative
law judges completed 779 initial unfair labor practice hearings in 1998.118
Also in 1998, 873 cases from earlier years were resolved in appeal stages
that follow the administrative law judge's hearing, either by the NLRB
or by federal circuit courts of appeals.119
While unfair labor practice cases are not broken down by size of the employee
groups involved, using as a proxy the average size of workplaces where
NLRB elections were held (workplaces that most likely give rise to unfair
labor practice cases)-sixty-six employees120-it
can be estimated that more than 100,000 workers in the United States were
affecteddirectly or indirectly by unfair labor practices cases that reached
the stage of an administrative law judge hearing or beyond in 1998 alone.

Rulemaking and Adjudication

Unlike many federal agencies, the NLRB
does not issue rules in the form of written regulations to supplement the
basic content of labor laws governing labor-management relations. Instead,
the board acts through adjudication of individual cases to set precedents
for similar situations.

Case-by-case NLRB decisions, as upheld
or modified by the courts, create a "common law" for organizing, collective
bargaining, and the right to strike in the United States. Depending on
an infinite variety of facts and circumstances in any situation, the same
conduct-for example, a speech by a plant manager to workers in a captive-audience
meeting, or the content of a leaflet issued by a union-might be lawful
or unlawful. A high level of expertise in "board law" is needed by advocates
advising workers and employers about how to behave in union organizing
campaigns, by regional directors deciding what makes up an appropriate
bargaining unit or whether to issue a complaint in an unfair labor practice
case, and by administrative law judges deciding cases.

Remedies

A common expression of U.S. labor law says
that the NLRA is remedial, not punitive. The NLRB cannot penalize an employer
for breaking the law. It can only order a "make-whole" remedy restoring
the status quo ante as the remedy for unfair labor practices. The
non-punitive character of U.S. labor law was established soon after adoption
of the Wagner Act. In the Consolidated Edison case, the Supreme
Court decided that punitive measures were not authorized by the NLRA.121
In the Republic Steel case, the court overturned a board order to
the employer to reimburse the Works Project Administration, a federal jobs
program, for the amount of wages subtracted from a back-pay remedy for
workers who had been employed by the WPA while they were unlawfully discharged
for union activity. The board's decision reasoned that the employer should
not reap the benefit of the employees' interim earnings from public works
employment. The court held that "[t]he Act is essentially remedial . .
. The Act does not prescribe penalties or fines in vindication of public
rights."122 Several commentators have observed
that in neither case didthe Supreme Court cite any statutory language or
legislative history to support the distinction between remedial and punitive
measures.123

Not only are there no punitive measures
for workers' rights violations. Employers can ignore orders by administrative
law judges or by the NLRB and force the board to seek enforcement by a
federal appeals court, adding years to the enforcement of its rulings.
The NLRB has no enforcement authority of its own.

The standard remedy for an unfair labor
practice is to have the employer post a notice at the workplace promising
not to repeat the unlawful conduct. Discriminatory discharge cases are
the most common category of charges filed with the NLRB. Here the standard
remedy includes an order to reinstate victimized workers with back pay.
However, any interim earnings fired workers received during the period
of discharge are subtracted from the employer's back-pay liability.

In practice, many discriminatory discharge
cases are settled with a small back-pay payment and workers' agreement
not to return to the workplace. At a modest cost and with whatever minor
embarrassment comes with posting a notice, the employer is rid of the most
active union supporters, and the organizing campaign is stymied.

In the other most common unfair labor practice
cases involving charges that employers refused to bargain in good faith
with the workers' chosen representative,124
the remedy is an order to post a notice acknowledging the conduct and to
return to the bargaining table and bargain in good faith. There is no further
remedy, so the same cycle can repeat itself indefinitely without an agreement
being reached.

10(j) Injunctions

In unfair labor practice cases where the
severity of an employer's unlawful conduct makes standard remedies inappropriate,
the NLRB is empowered under Section 10(j) of the NLRA to seek a federal
court injunction to halt the unlawfulconduct. For example, a 10(j) injunction
may be sought to obtain immediate reinstatement of workers fired for union
activity. However, this power is rarely invoked. In 1998 the NLRB sought
injunctions in only forty-five cases, and some of these included mandatory
injunctions against unions to halt secondary boycott actions.125

Non-Self-enforcement

Final orders of the NLRB are not self-enforcing.
That is, the board must obtain a federal court order to enforce its decisions.
In many cases, this adds months or years to the resolution of a case, leaving
workers with no effective remedy while the case winds its way through the
court system. Even when workers prevail at every stage of the NLRB process,
no final remedy takes place until a court orders it. By that time, the
remedy is often impotent.

Delays

The problem of delays is endemic in U.S.
labor law practice. Using NLRB data on median time lapses for reaching
various stages of legal proceedings in unfair labor practice cases that
are deemed meritorious (as distinct from the 60-65 percent of cases that
are not found to have merit, which are quickly disposed of), it takes nearly
three months for an investigation to be wrapped up and a complaint to be
issued. It then takes six months to finish a trial before an administrative
law judge. Five more months go by before the judge issues his or her decision
in the case. If that decision is appealed to the NLRB, it takes ten more
months for the board to issue a ruling.126 By
now two years have passed, and appeals can then be made to federal courts,
where further delays of up to three years can be expected.

These are median time lapses. That is,
half of all meritorious cases take longer than the time frames just noted.
In general, these longer cases involve more complex disputes involving
multiple unfair labor practices by employers that the NLRB found to be
intent on preventing workers' organizing or preventing a contract being
reached-exactly those cases with the most serious consequences for workers'
freedom of association.

Over time, the slow unfolding of the legal
mechanisms and the availability of appeal after appeal make workers' organizing
efforts suffer from employee turnover and frustration and discouragement
among workers who stay. Such sentiments were expressed by many workers
interviewed by Human Rights Watch for this report. The result is a frequent
denial of workers' fundamental rights.

88 See
NLRB
v. Washington Aluminum Co., 370 U.S. 9 (1962), where the Supreme Court
ruled that workers who engaged in a spontaneous walkout because their workplace
was too cold had engaged in a protected concerted activity, even though
they were not unionized or seeking to unionize. The employer had fired
the workers for their concerted activity; the court upheld an NLRB reinstatement
order.

89 Sometimes
the selection of which union to call is completely haphazard, depending
on nothing more than seeing a union's name in the newspaper, or the location
of the nearest union office, knowing the largest union in the community,
or having a friend who belongs to a union and calling that union. There
is no requirement in the United States, as there is in many other countries,
that only a union for a particular industry may organize workers in that
industry. So, for example, some nurses have joined the steelworkers union.
Some insurance company clerks have joined the autoworkers union. What unions
call "jurisdiction" is jumbled, and unions often compete to represent the
same group of workers. One of the main activities of the AFL-CIO, the federation
of some seventy national unions, is to set rules and regulations for resolving
unions' jurisdictional disputes so that they do not squander resources
in internecine battles when 85 percent of U.S. workers are not represented
by unions.

90 The concept
of a defined "bargaining unit" is critical for understanding and applying
U.S. labor law. Under the law, a group of workers seeking to form a union
must have sufficient "community of interest" to bargain as a single group
with the employer of their group. Litigation over bargaining unit definition
(should a janitor be in the same unit with a skilled computer programmer,
for example) and the employer-employee relationship (can "leased" employees
from a temporary agency bargain with the employer at the place where they
work) is often complex and causes serious delays in the exercise of freedom
of association for workers in the United States.

91 Trade unionists
attribute the dropoff in union support to employers' campaigns of fear
and intimidation. Employers call workers' change in sentiment a sincere
reversal after hearing management's side in the campaign.

92 Litigating
employer "knowledge" of a worker's union activity is often difficult. Some
unions take the step of sending the employer a letter early in the organizing
effort, before a petition is filed, identifying organizing committee members
so that the employer cannot claim lack of knowledge if a worker on the
list suffers reprisals.

93 Captive-audience
meetings are meetings held by management at the workplace on work time
to inveigh against union formation and collective bargaining. Speeches,
videos, movies, overhead projector presentations, role-playing, and even
skits using professional actors are some of the features of management's
captive-audience meetings.

101 The U.S.
Supreme Court has ruled that the NLRB has no power to remedy an employer's
refusal, made in bad faith for the sole purpose of avoiding an agreement,
to accept or even to bargain over a proposal from workers other than to
order the employer to resume bargaining. See H.K. Porter Co. v. NLRB,
397 U.S. 90 (1970).

102 See NLRB
v. Katz, 369 U.S. 736 (1962).

103 Ibid., at
745.

104 For a thorough
discussion, see Ellen J. Dannin, "Legislative Intent and Impasse Resolution
under the National Labor Relations Act: Does Law Matter?", 15 Hofstra Labor
and Employment Law Journal 11 (Fall 1997).

105 Se below,
Chapter V., Coloradao Steelworker, the Right to Strike, and Permanent
Replacements in U.S. Labor Law, for treatment of the permanent replacement
doctrine.

106 Unless otherwise
noted, reference to "U.S. labor law" or "U.S. labor law and practice" in
this report involves the NLRA and related NLRB and federal court decisions
and doctrine dealing with freedom of association, the right to organize,
the right to bargain collectively, and the right to strike. Where laws
or legal matters related to other worker issues like wages, hours or working
conditions are discussed, those laws or matters will be separately identified.

107 Using the
Bureau of Labor Statistics' Current Population Surveys, Human Rights Watch
estimates that half of all workers in the United States come under NLRB
jurisdiction. The rest are public employees, railway and airline employees,
self-employed individuals, microenterprise workers (presumably under state
"little NLRA " laws) and workers excluded from NLRB coverage including
independent contractors, domestic workers, managers, and supervisors.

108 A comprehensive
history of the NLRB is found in James A. Gross, Broken Promise: The
Subversion of U.S. Labor Relations Policy, 1947-1994 (Philadelphia,
Temple University Press 1995).

109 The famous
labor song "Which Side Are You On?" contains the line "There are no neutrals
there." In general, labor law professionals cast their scholarship or their
working lot with unions or with management early in their careers and remain
on one side of the line. As this report demonstrates, labor-management
relations are highly contentious, and finding a middle ground on matters
of policy or on appointments to the NLRB is more often a process of hard
bargaining and painful compromise, not easy consensus.

110 See, for
example, "The NLRB: An Agency In Crisis," Prepared Statement by Daniel
V. Yager, Vice President and General Counsel, Labor Policy Association,
before the Senate Labor and Human Resources Committee, September 17, 1996,
on file with Human Rights Watch (arguing that the NLRB under President
Clinton "has abandoned the neutrality and impartiality essential to the
administration of a law intended to create a level playing field for management
and labor").

124 In 1998,
8,734 unfair labor practice charges were filed against employers alleging
discrimination against workers exercising the right to freedom of association.
Refusal to bargain allegations gave rise to 7,187 charges. Separately,
a combination of discrimination and refusal to bargain were alleged in
2,113 charges. Together, these charges accounted for more than 75 percent
of the total number of unfair labor practice charges against employers.
In comparison, 38 discrimination charges, 172 refusal-to-bargain charges,
and 2 combined charges were filed against unions. See NLRB 1998 Annual
Report, Table 2, p. 130.

125 See NLRB
1998 Annual Report, p. 19. The report does not break down the nature of
injunction proceedings and what type of unfair labor practices they entail.